ICANN never makes a decision if it can make a process instead, and that seems to be the case with the board’s latest call on .xxx.

The board voted this morning to kick ICM’s proposal until after the Brussels meeting in June, on the basis that it needs a process by which it can approve .xxx.

While this is mixed news for ICM – it’s not what it hoped for but the company still has a pretty good chance of getting what it wants – the language used in the resolution clearly indicates that the board believes .xxx is currently in an unapproved state:

Whereas, in the absence of a process for approving an sTLD six years following the receipt of the original application, the Board wishes to create a transparent set of process options which can be published for public comment. [my emphasis]

I find it difficult to believe, given the painstaking picking-apart of previous board language during the Independent Review Panel and the fact that there’s a outside chance this resolution could end up as an exhibit, that this wording was used by accident.

ICM’s claim is that .xxx has already been approved. As I’ve previously said, it’s difficult to conclude that the independent review panel thought differently when it found:

Fourth, the Board of ICANN in adopting its resolutions of June 1, 2005, found that the application of ICM Registry for the .XXX sTLD met the required sponsorship criteria.

Fifth, the Board’s reconsideration of that finding was not consistent with the application of neutral, objective and fair documented policy.

In other words, the 2005 approval was kosher but the subsequent rejection was not.

But ICM appears ready to play ball for the moment.

Stuart Lawley from the company told me he’s “looking forward” to ICANN’s staff’s proposals on how to proceed, which are due to be posted for comment within the next 14 days.

We then get 45 days to pick its suggestions to pieces, before the board decides whether to use them or not. That’s set for Brussels at the latest, 106 days from now.